Our #4 military justice story of the year involves five Marines: an accused, a military judge, two prosecutors, and an officer-in-charge.

The accused, Corporal Salyer, was tried in November, 2011, for wrongful possession and distribution of child pornography. At the beginning of the trial the military judge, Lieutenant Colonel Mori, made an odd ruling about the definition of child pornography. He determined that because of the way the case was charged, the definition of child pornography would include an image of a person under the age of 16 but not of a person under the age of 18. The trial counsel, Captain Harley Maya, argued against this interpretation, but she was overruled. Captain Maya then gave an opening statement to the members in which she referred to an item that Lieutenant Colonel Mori had excluded from evidence.

Lieutenant Colonel Mori threatened to declare a mistrial if the Government couldn’t find another way to admit the excluded item, and Captain Maya went for help. She met with Captain Jesse Schweig, the “military justice officer” (a supervisory position). Here’s CAAF’s description of what happened next:

According to Capt Schweig, Capt Maya told him of rumors that “Lieutenant Colonel Mori may have had a young wife.” This prompted Capt Schweig to access LtCol Mori’s official personnel record. . . . having retrieved the information from LtCol Mori’s personnel record, Capt Schweig went to see LtCol Mannle, Officer-in-Charge (OIC) of the base Legal Services Center. They discussed the military judge’s decision to use age sixteen vice age eighteen to define a minor for purposes of the charged child pornography offenses.

United States v. Salyer, 72 M.J. 415, 420 (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page). The OIC then called Lieutenant Colonel Mori’s judicial supervisor to “let him know that a significant event was about to happen,” while Captain Maya conducted a voir dire of the judge during which “she asked the military judge how old his wife was when they married.” Salyer, 72 M.J. at 421. Lieutenant Colonel Mori answered that his wife was 17 when they married. But Captain Maya already knew this. She then offered material Captain Schweig obtained from the judge’s personnel record as an exhibit for the trial record.

The next day, Lieutenant Colonel Mori recused himself from the case with a written ruling that cited “LtCol Mannle’s phone call to [his judicial superior] and the trial counsel’s reference to his wife’s age at the time of their marriage.” Salyer, 72 M.J. at 421. A new judge was assigned, and Corporal Salyer was convicted of the possession offense and sentenced to confinement for two years, total forfeitures, reduction to E-1, and a bad-conduct discharge.

We learned about the case a year later, when the Navy-Marine Corps Court of Criminal Appeals (NMCCA) issued an opinion affirming the findings and sentence. The NMCCA was unfazed by a prosecutor rooting around in a military judge’s personnel record, and the court asserted an “innocent purpose behind the call” to the judge’s supervisor. United States v. Salyer, No. 201200145, slip op. at 9 (N-M.Ct.Crim.App. Oct. 23, 2012) (link to slip op.).

But CAAF felt differently, and on August 2, 2013, it reversed Corporal Salyer’s conviction and dismissed the case with prejudice. In a 34 page opinion authored by Chief Judge Baker, a majority of the court concluded that, “the unprofessional actions of the Government improperly succeeded in getting the military judge to recuse himself from Appellant’s court-martial.” Salyer, 72 M.J. at 428.

When a prosecutor facing a mistrial suggests that the judge’s personal life might be a reason to disqualify him from the case, and then a supervisory prosecutor digs through the judge’s personnel record looking for material to use for that purpose, and then the officer-in-charge, also an attorney, participates in the effort to remove the judge, causing the judge to recuse himself, and the accused is sentenced to two years, but 21 months later an appellate court throws out the case because of the actions of the prosecutors and the officer-in-charge, that might be enough to qualify for a spot on our top ten list.

CAAF decided United States v. Salyer, No. 13-0186/MC, 72 M.J. 415 (CAAFlog case page) (link to slip op.), on August 2, 2013, finding that the appearance of unlawful command influence was raised when the Government counsel accessed the personnel record of the trial judge – Lieutenant Colonel (LtCol) Mori – in order to obtain information that Government counsel used to challenge LtCol Mori as presiding judge for the trial, and when supervisory Government counsel engaged in an ex parte communication with LtCol Mori’s judicial superior and expressed displeasure about LtCol Mori’s rulings in the case, both actions leading to LtCol Mori’s recusal and replacement as the trial judge. CAAF also finds that the Government failed to cure this appearance of unlawful influence with proof that a disinterested person knowing all the facts would believe that Appellant received a fair trial.

Appellant – who was a Corporal in the Marines – was convicted contrary to his pleas in 2011, by a general court-martial composed of officer and enlisted members, of wrongful possession of child pornography in violation of Article 134, and sentenced to confinement for two years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad-conduct discharge. CAAF reverses the conviction and dismisses the case with prejudice (meaning that Appellant will be restored in rank, will receive back pay and promotion consideration, and may not be re-tried).

Chief Judge Baker writes for the court, joined by Judges Erdmann and Stucky. Judge Ryan dissents, joined by Senior Judge Cox.

The Chief Judge’s opinion is a massive 35 pages, but it treads rather softly around some key facts. Put simply, Government counsel made a slew of tactically and strategically nonsensical decisions in the prosecution of this case, creating a desperate situation with LtCol Mori threatening a mistrial after opening statements. The charges – which alleged distribution of child pornography and possession of a laptop computer containing child pornography – were poorly drafted (see slip op. at 3 N.2) and then stripped of key language before trial (see slip op. at 4). The laptop computer at the heart of the case either didn’t exist or was badly mishandled by the Government. See slip op. at 4. Government counsel fixated on meaningless issues, particularly whether the definition of “child pornography” in this case required that the image depict someone under the age of 18 or under the age of 16 (when the images clearly depicted individuals under the age of 16, and some under the age of 10). See slip op. at 25. And the animosity of Government counsel towards LtCol Mori is palpable, even in the mere snippets of the record reprinted in the opinion; they obviously held a grudge from LtCol Mori’s ruling disqualifying them from a different case (a remedy usually reserved for significant instances of prosecutorial misconduct). See slip op. at 14.

But Chief Judge Baker extends Government counsel a seemingly-undeserved degree of professional courtesy, merely disagreeing with the CCA’s conclusion that there was a good faith basis to access LtCol Mori’s personnel record and then question him about his personal life. Slip op. at 20. That questioning led to LtCol Mori recusing himself from further participating in the case. The subject personal fact was that LtCol Mori’s wife was 17 years old when he married her ten years prior. Most prosecutors armed with evidence including obscene images of children under the age of 10 would look past the ruling of LtCol Mori that, under the unique circumstances of this case, “a minor” was someone under the age of 16 vice under the age of 18. But this Government counsel:

testified that he was “prompted . . . to pull up [LtCol] Mori’s [personnel file]” because “the government was looking for some reason why [LtCol] Mori” had defined “minor” as under the age of sixteen, and someone in the prosecutor’s office had mentioned that LtCol Mori had a “very young wife.” He further stated that there was “absolutely no intent to embarrass the military judge. . . . [t]he sole purpose [was] to attempt to figure out if there were any outside influences in his decision.”

Additionally, the OIC testified at length as to his reasons for calling the CMJ. Along with trial counsel and the MJO, the OIC was “perplexed by” LtCol Mori’s ruling as to the definition of “minor.” When the MJO showed him LtCol Mori’s personnel file, which indicated that his wife was seventeen years of age at the time they wed, the OIC believed “at that point there was a relevant issue for the government that suggested bias on the part of [LtCol Mori].”

Ryan, J., diss. op. at 4-5. Nobody at CAAF thinks this was an even remotely good idea, with the dissenters “agree[ing] with the majority that the MJO’s action in accessing LtCol Mori’s personnel record was highly improper and may even rise to the level of an ethical violation.” Diss. op. at 11 N.3. Because of these actions, LtCol Mori was replaced by Colonel (Col) Richardson, who then heard testimony and argument about the Government’s conduct, ultimately ruling that corrective action well short of dismissal was warranted. Col Richardson was undeniably charitable to Government counsel in his ruling on the propriety of their actions that led to LtCol Mori’s removal from this case. But the degree of deference to be afforded to Col Richardson’s ruling is a strong undercurrent in this case, and his ruling is ultimately somewhat unclear. Chief Judge Baker explains:

Col Richardson found neither actual nor apparent unlawful influence regarding trial counsel’s actions. He concluded that “[t]he MJ’s statistically anomalous personal situation in this regard, vis-a-vis his sua sponte raising the age issue and then ruling quickly and curtly in the defense’s favor was a perfectly valid basis for the Government to voir dire and challenge the MJ” and, that “the Government was well within [its] rights based on these facts to inquire into the matter.”

Slip op. at 17. But he also notes:

Regarding LtCol Mori’s marriage, the replacement military judge stated on the record that, “I don’t know that marrying a 17-year-old woman could affect somebody’s career in any way, shape, or form. And I don’t believe that that is a proper consideration. It was a legal marriage.”

Slip op. at 29 N.13. Whatever Col Richardson’s final conclusion about the propriety of the Government’s inquiry, Chief Judge Baker concludes (somewhat anemically) that the inquiry was in fact not proper, listing it among the factors that raise the appearance of unlawful command influence:

Second, in response to what is described by the Government and the CCA as a rumor conveyed by trial counsel, the military justice officer obtained access to the military judge’s official personnel file to determine the age of the military judge’s wife at the time she married the military judge. This marriage occurred ten years prior to Appellant’s trial. Trial counsel made no logical nexus between the wife’s age at marriage and the ruling regarding the age of a minor. Further, there is a considerable difference between marrying a seventeen-year-old, an act sanctioned by law, and possession of child pornography.

Slip op. at 25. Sadly, neither Chief Judge Baker’s majority opinion nor Judge Ryan’s dissent address the overwhelming amount of precedent along the lines that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Such analysis would have been particularly useful in this case, where Government counsel predicated their actions on a tactically insignificant ruling, a factually irrelevant personal event from a decade prior, and an apparent personal grudge (itself the product of a different ruling).

Today CAAF decided United States v. Salyer, No. 13-0186/MC, (opinion) (CAAFlog case page) finding that the Government’s conduct in accessing the trial military judge’s official personnel record to acquire material used to obtain the judge’s recusal from the case raised some evidence of unlawful command influence, and that the Government failed to prove the harmlessness of this influence. CAAF reversed the NMCCA, set aside the findings, and dismissed the case with prejudice.

Chief Judge Baker wrote for the court, joined by Judges Erdmann and Stucky. Judge Ryan dissented, joined by Senior Judge Cox.

If you haven’t been waiting anxiously for this opinion, here’s something to whet your appetite:

After the members returned, the military judge provided preliminary instructions, including the definition of child pornography, with minor defined as a “real person under the age of 16.” Trial counsel, Capt Maya, proceeded with her opening statement, making the following statement to the members regarding the actions of the investigator in the case:

But at this point all she had was that IP address. She didn’t know who was behind the IP address so she sent a subpoena off and she found out that this IP address was registered to a Danielle Salyer who lived at [address].

Emphasis added. This was an obvious reference to PE 5, which had been excluded. With apparent frustration, the military judge addressed trial counsel outside the presence of the members:

MJ: Stop, stop, stop. I specifically excluded that piece of evidence. How are you going to get it in?

TC: Effect on listener, sir. It is the reason — it is part of the investigation that is —

MJ: Okay, I am not going to allow that in.

TC: But, it wouldn’t be for the truth of —

MJ: It is not coming in. That is a piece of evidence that ties the accused.

TC: And the government would be amenable —

MJ: No —

TC: — to a limiting instruction if we couldn’t get some sort of —

MJ: Well, it’s either going to be a mistrial if you don’t get it in somewhere else.

TC: Sir, the —

MJ: Just listen. That is my ruling. We aren’t going to address that.

TC: Yes, sir.

. . . .

MJ: I’ve considered your argument on the effect on the listener and I am not allowing it.

After this ruling, the Court recessed. Capt Schweig, the military justice officer, later testified that he and unnamed others met and discussed the military judge’s ruling on the definition of a minor. According to Capt Schweig, Capt Maya told him of rumors that “Lieutenant Colonel Mori may have had a young wife.” This prompted Capt Schweig to access LtCol Mori’s official personnel record. According to Capt Schweig, this record indicated that LtCol Mori had been married for ten years and that his wife “was most likely 17 years old or maybe a little bit more at the time they were married.” Capt Schweig further testified that, “The sole basis was an attempt to determine if there was any possible source of bias inherent in the judge’s ruling.” According to this same testimony, having retrieved the information from LtCol Mori’s personnel record, Capt Schweig went to see LtCol Mannle, Officer-in-Charge (OIC) of the base Legal Services Center. They discussed the military judge’s decision to use age sixteen vice age eighteen to define a minor for purposes of the charged child pornography offenses.

Slip op. at 9-11 (emphasis and notation in original). And:

[W]here there is evidence in the record of an effort to unseat a military judge based on the trial counsel’s animosity toward the military judge, to secure a more favorable ruling, or to cause the assignment of an alternative military judge, where the presiding military judge is otherwise qualified to serve, an appearance of unlawful command influence is raised.

Slip op. at 24.

Salyer was the last undecided case of the term, so that’s all folks for ST2012. End o’ Term Stats to follow.

Granted Issue: Whether appellant’s conviction for involuntary manslaughter under Article 119(b)(2), UCMJ, is legally insufficient because (1) in accordance with United States v. Sargent, 18 M.J. 331 (C.M.A. 1982), appellant’s distribution of oxymorphone was not a crime directly affecting the person under Article 119(b)(2), and (2) even if so, Congress did not intend for Article 119(b)(2) to cover appellant’s misconduct.

Specified Issue: In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King’s wrongful use of Oxymorphone, which is alleged to be an “offense” directly affecting the person of Ms. King. Must Ms. King’s use of Oxymorphone be an “offense” to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

Issue: Under United States v. Lewis, a case is dismissed with prejudice when unlawful command influence results in the recusal of a military judge. Here, the military judge recused himself because he found that the government’s actions made it impossible for him to remain on the case. The government complained to his supervisor about a ruling, accessed his service record without permission and, with this information, moved for his recusal. Should this case be dismissed with prejudice?

CAAF has announced that it will hear oral argument in two cases on 2 Apri: United States v. Bennitt, 12-0616/AR, which presents a couple of search and seizure issues and a specified legal sufficiency issue, and the closely watched case of United States v. Salyer, No. 13-0186/MC, dealing with prosecutors accessing the military judge’s private information and a prosecution supervisory official contacting the military judge’s reporting senior concerning a motion to disqualify the military judge following a ruling adverse to the government.

From one perspective, if Judge Mori had just done what the government lawyers wanted, none of this would have had to happen.

If Judge Mori had just ruled the way the government lawyers asked, they never would have investigated his wife. If he had just given the instructions that they demanded, they never would have called his boss. If he had just ruled for the prosecution, instead of the defense, the government never would have tried to remove him. And none of the issues facing this Court would have ever arisen. Of course, had Judge Mori done any of those things, he would have violated the basic principle underlying all courts-martial: the necessity of independence.

We’ve been following the case of United States v. Salyer, No. 13-0186/MC, which involves a UCI issue arising from the military judge’s recusal after government lawyers accessed his personnel record and challenged him for cause due to the age of his wife when they married, as well as the OIC of the law center calling the military judge’s supervisor and discussing the government’s upcoming motion to disqualify with him. Here’s a link to the appellant’s brief, which was filed last week.

We’ve been following the case of United States v. Salyer closely for about three months now, see NMCCA opinion analysis here and Top 10 MilJus Story of 2012 post here. And it looks like we’ll get at least another three months out of the story. Here is a link to CAAF’s grant of review in the case. As we noted before, the QP in the case is:

Under United States v. Lewis, A Case Is Dismissed With Prejudice When Unlawful Command Influence Results In The Recusal Of A Military Judge. Here, The Military Judge Recused Himself Because He Found That The Government’s Actions Made It Impossible For Him To Remain On The Case. The Government Complained To His Supervisor About A Ruling, Accessed His Service Record Without Permission And, With This Information, Moved For His Recusal. Should This Case Be Dismissed With Prejudice?

We’ve devoted a great deal of virtual ink to the case of United States v. Salyer, No. 13-0186/MC. (See, e.g., here, here, and here.) Code 46 spilled much less virtual ink on Salyer; it filed a 10-day letter today.

I sent an email to CAAF after midnight last night asking for a copy of the supp in United States v. Salyer. The wonderful folks at the Clerk’s office have already sent me a copy, which we’ve posted here.

Here’s the issue presented:

UNDER UNITED STATES V. LEWIS, A CASE IS DISMISSED WITH PREJUDICE WHEN UNLAWFUL COMMAND INFLUENCE RESULTS IN THE RECUSAL OF A MILITARY JUDGE. HERE, THE MILITARY JUDGE RECUSED HIMSELF BECAUSE HE FOUND THAT THE GOVERNMENT’S ACTIONS MADE IT IMPOSSIBLE FOR HIM TO REMAIN ON THE CASE. THE GOVERNMENT COMPLAINED TO HIS SUPERVISOR ABOUT A RULING, ACCESSED HIS SERVICE RECORD WITHOUT PERMISSION AND, WITH THIS INFORMATION, MOVED FOR HIS RECUSAL. SHOULD THIS CASE BE DISMISSED WITH PREJUDICE?

We’ve been following the case of United States v. Salyer, No. NMCCA 201200145 (N-M. Ct. Crim. App. Oct. 23, 2012), in which a military justice officer accessed a military judge’s personnel record in an attempt to obtain documentation to support a causal challenge. The case even played a prominent role in our Christmas Eve entry in our top-10 military justice stories of 2012 list. Unbeknownst to me at the time, Salyer’s appellate defense counsel had already filed a CAAF petition in the case. Monday’s update of the daily journal included a docketing notice for United States v. Salyer, No. 13-0186/MC. I don’t know whether Salyer’s counsel filed the supp along with the petition or moved for additional time to file the supp. If a supp has been filed, we’ll try to obtain and post a copy. If not, we’ll try do so once it’s filed.

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